# C_2016410EN.01000301.xml

| 7.11.2016 | EN | Official Journal of the European Union | C 410/3 |
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7.11.2016

EN

Official Journal of the European Union

C 410/3

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Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 3 August 2016 — Bayerische Motoren Werke AG v Acacia S.r.l.

(Case C-433/16)

(2016/C 410/03)

Language of the case: Italian

Referring court

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Parties to the main proceedings

Appellant: Bayerische Motoren Werke AG

Appellant:

Respondent: Acacia S.r.l.

Respondent:

Questions referred

Questions referred

| 1. | Under Article 24 of Regulation No 44/2001, can an action to contest the jurisdiction of the national court seised that is brought before that court as a preliminary matter but in the alternative to other preliminary procedural objections and nevertheless before issues of substance are raised be interpreted as acceptance of the jurisdiction of that court? |
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1.

Under Article 24 of Regulation No 44/2001, can an action to contest the jurisdiction of the national court seised that is brought before that court as a preliminary matter but in the alternative to other preliminary procedural objections and nevertheless before issues of substance are raised be interpreted as acceptance of the jurisdiction of that court?

| 2. | Must the absence of provision in Article 82[(5)] of Regulation No 6/2002 for alternative jurisdictions to that of the defendant as stipulated in Article 82(1) of that regulation for cases relating to negative declarations be interpreted as implying the attribution of exclusive jurisdiction for such cases? |
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2.

Must the absence of provision in Article 82[(5)] of Regulation No 6/2002 for alternative jurisdictions to that of the defendant as stipulated in Article 82(1) of that regulation for cases relating to negative declarations be interpreted as implying the attribution of exclusive jurisdiction for such cases?

| 3. | Is it also necessary, in order to resolve the question posed in [the preceding] paragraph ..., to take account of the interpretation of the rules on exclusive jurisdiction in Regulation No 44/2001, and in particular in Article 22, which provides for such jurisdiction, inter alia in proceedings concerned with the registration or validity of patents, trade marks and designs but not in cases regarding negative declarations, and in Article 24, which provides for the possibility that the defendant may accept a different jurisdiction, except where jurisdiction is derived from other provisions of the regulation, thereby establishing the jurisdiction of the court seised by the applicant? |
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3.

Is it also necessary, in order to resolve the question posed in [the preceding] paragraph ..., to take account of the interpretation of the rules on exclusive jurisdiction in Regulation No 44/2001, and in particular in Article 22, which provides for such jurisdiction, inter alia in proceedings concerned with the registration or validity of patents, trade marks and designs but not in cases regarding negative declarations, and in Article 24, which provides for the possibility that the defendant may accept a different jurisdiction, except where jurisdiction is derived from other provisions of the regulation, thereby establishing the jurisdiction of the court seised by the applicant?

| 4. | Is the approach adopted by the Court of Justice in the judgment of 25 October 2012 in Folien Fischer and Fofitec, C-133/11, EU:C:2012:664, with regard to the applicability of Article 5(3) of Regulation No 44/2001 of a general and absolute nature applicable to every action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict, including those for a declaration of non-infringement of Community designs, and hence in the present case is it the court referred to in Article 81 of Regulation No 6/2002 or that referred to in Article 5(3) of Regulation No 44/2001 that has jurisdiction, or may the applicant opt for one or other of the possible jurisdictions? |
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4.

Is the approach adopted by the Court of Justice in the judgment of 25 October 2012 in Folien Fischer and Fofitec, C-133/11, EU:C:2012:664, with regard to the applicability of Article 5(3) of Regulation No 44/2001 of a general and absolute nature applicable to every action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict, including those for a declaration of non-infringement of Community designs, and hence in the present case is it the court referred to in Article 81 of Regulation No 6/2002 or that referred to in Article 5(3) of Regulation No 44/2001 that has jurisdiction, or may the applicant opt for one or other of the possible jurisdictions?

Folien Fischer

Fofitec

| 5. | If actions for abuse of a dominant position and unfair competition are brought in the context of a case concerning Community designs with which they are connected, in that their admissibility presupposes prior admissibility of the application for a negative declaration, can they be heard together with that case by the same court in accordance with a broad interpretation of Article 28(3) of Regulation No 44/2001? |
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5.

If actions for abuse of a dominant position and unfair competition are brought in the context of a case concerning Community designs with which they are connected, in that their admissibility presupposes prior admissibility of the application for a negative declaration, can they be heard together with that case by the same court in accordance with a broad interpretation of Article 28(3) of Regulation No 44/2001?

| 6. | Do the two actions referred to in [the preceding] paragraph ... constitute a case of tort, delict or quasi-delict, and, if so, may they affect the applicability of Regulation No 44/2001 (Article 5(3)) or of Regulation No [6/2002] to the present case as regards jurisdiction? |
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6.

Do the two actions referred to in [the preceding] paragraph ... constitute a case of tort, delict or quasi-delict, and, if so, may they affect the applicability of Regulation No 44/2001 (Article 5(3)) or of Regulation No [6/2002] to the present case as regards jurisdiction?

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